Luo Council of Elders & 8 others v County Government of Bomet & 24 others [2018] KEELC 1369 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed all challenges to the Itare Dam, confirming the project's environmental licence and public participation were legally valid.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC and the exhaustion doctrine vis-à-vis the National Environmental Tribunal
The ELC has jurisdiction; the exhaustion doctrine is inapplicable because the Petitions raise broad constitutional questions unsuitable for the NET
The 3rd and 5th Respondents argued the Petitioners should have appealed to the NET under Section 129 EMCA. The court accepted that EIA licence challenges ordinarily go to the NET but held that the multiplicity of constitutional issues (access to information, national values, land rights, environmental rights) requiring constitutional interpretation made the NET unsuitable. Section 13(3) of the ELC Act expressly permits redress for violations of Articles 42 and 70.
Adequacy of public participation
Adequate and sufficient public participation was undertaken
Public meetings were held (attended by up to 3,000 people), notices were published in the Daily Nation and Star newspapers, Kenya Gazette Notice No. 6858 of 28 August 2016 invited comments for 30 days, radio announcements were made, posters erected and loudspeakers used. Regulation 17(1) of the EIA and Audit Regulations 2003 was substantially complied with. Interested parties who failed to attend the forums could not later complain; the wider public interest outweighed the objectors' interests.
Violation of Articles 10, 42, 69 and 70
No violation established; the Respondents complied with constitutional and statutory environmental requirements
The Petitioners produced no evidence to contradict the expert testimony that only about 6% of the Sondu catchment and 4% of river flow would be affected, that a spillway would maintain downstream flow, and that the ESIA followed NEMA's statutory process. NEMA satisfied itself the development was sustainable before issuing the licence.
Validity of the NEMA EIA licence and challenge to the ESIA study
The licence was validly issued; the court would not, absent proven constitutional or statutory violation, impugn the ESIA study report
The court held the ESIA report was procedurally prepared in compliance with Section 58 EMCA and the 2003 Regulations, with public scrutiny, stakeholder engagement and gazettement. Only demonstrated constitutional or statutory violations affecting the credibility of the report could justify interference; none were proved.
Land rights and compensation
No property rights of the Petitioners were violated; the dam site is public land reserved in 1982
A surveyor's report established the dam site (Ndoinet Settlement Scheme/1497, approx. 258 hectares) was reserved for the dam during demarcation. Only 12 encroaching homesteads and a forest evictees' camp were found, with no ownership documents; affected persons would be compensated under the Resettlement Action Plan. The Petitioners proved no ownership rights capable of violation.
Specificity of constitutional allegations
The Petitions failed the Anarita Karimi Njeru precision standard
The Petitioners made generalized allegations without particulars of the rights infringed or the manner of infringement, including regarding international treaties. Rule 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 requires the facts, the provision violated, the injury and the relief sought.
Legal principles established
#- Jurisdiction is everything and a court without jurisdiction must down its tools
- Where a clear statutory procedure for redress exists, the exhaustion doctrine ordinarily applies, but constitutional petitions raising broad issues of constitutional interpretation may fall within the exceptions
- Public participation does not require that every person be heard or that all views be accepted; a reasonable opportunity to know and be heard suffices, judged on the circumstances of each case
- The right of access to information under Article 35(1) is limited to natural persons who are citizens of Kenya and is triggered only by a request which is then denied
- A party alleging constitutional violation must plead with reasonable precision the provision infringed and the manner of infringement, per the Anarita Karimi Njeru standard
- A right must be shown to have existed before a court can decree its violation; the petitioner bears the burden of proving violation
- In hybrid cases, the predominant purpose test determines whether the Environment and Land Court or the High Court has jurisdiction
Court orders
#- 1.The consolidated Petitions (Petition No. 9 of 2017 as lead file, and Petition Nos. 44 and 45 of 2016) were dismissed
- 2.Each party to bear their respective costs of the petitions
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (8)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mereka & another v Director General, National Environment Management Authority & 2 others (Cause 22 of 2019) [2022] KEELC 3137 (KLR)[2022] KEELC 3137 (KLR)9 Jun 2022
- Mavoko Water & Sewerage Company Limited v Safaricom Staff Pension Scheme Registered Trustees & another [2022] KEELC 422 (KLR)[2022] KEELC 422 (KLR)20 Apr 2022
- Joel Amdany & 90 others v Baringo County Government & 3 others [2021] KEELC 3687 (KLR)[2021] KEELC 3687 (KLR)13 Apr 2021applied
- Hassan Ali Kassim & 2 others v Hassan Abdi Ali & 5 others [2020] KEELC 3632 (KLR)[2020] KEELC 3632 (KLR)12 Feb 2020applied
- Petitioners (Residents of Kopere Market, Daraja Mbili Township) v Respondents (implementers of the Kenya Informal Settlements Improvement Project at Kopere Market)[2019] KEHC 1895 (KLR)15 Oct 2019applied
- Rwanyange Resident Self Help Group (suing thro’ Charles Kariuki, Nick Mutiga, Its Chairman and Secretary) v Tana Water Services Board & 2 others [2019] KEELC 2187 (KLR)[2019] KEELC 2187 (KLR)31 Jul 2019applied
- Jane Wagathuitu Githinji & 2 others v Sojanmi Springfields Limited & 2 others [2019] KEELC 2672 (KLR)[2019] KEELC 2672 (KLR)19 Jun 2019
- Pangaea Development Holdings Limited (For and on behalf of Hacienda Development Holdings Limited v Hacienda Development Limited & another; Registrar of Titles, Mombasa Central Registry(Interested Party) [2019] KEELC 4474 (KLR)[2019] KEELC 4474 (KLR)28 Feb 2019distinguished
Cite this brief
#Cite this brief
Caselaw, "Luo Council of Elders & 8 others v County Government of Bomet & 24 others [2018] KEELC 1369 (KLR)", Case Analysis (2018). ELC Petition No. 9 of 2017 (consolidated with Petition Nos. 44 of 2016 and 45 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1369/eng@2018-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.